Community Television Of So. Cal. v. Gottfried - Oral Argument

ORAL ARGUMENT OF EDGAR F. CZARRA, JR., ESQ., ON BEHALF OF THE PETITIONER IN 81-298

Chief Justice Burger: We will hear arguments next in Community Television against Gottfried.

Mr. Czarra, I think you may begin whenever you are ready.

Mr. Czarra: Mr. Chief Justice, and may it please the Court, this statutory construction case involves television programs for the deaf.

Some background will establish the context for the specific facts and the narrow legal issue that is before the Court.

Without visual aids, most deaf persons cannot understand the sound part of television.

Government agencies and broadcasters have been working for more than a decade on ways to provide the deaf with suitable access to the sound part of television.

Until early 1980, there were essentially two kinds of special visual aids that could help the deaf.

One was sign language interpretation.

The other was so-called open captions.

While helpful to the deaf, both are visible on all television sets.

Because they are distracting and block part of the visual picture, both impact adversely on television service for the non-deaf majority.

Competing technologies to produce captions visible only to the deaf reached the developmental stage in the early 1970's, and have been evolving.

This is so-called closed captioning.

One system reached the marketplace in 1980.

The other is not as far along, but it may offer more benefits in the long run.

Basically, both involve transmission of specially encoded signals that will produce captions only on television sets that have special decoding mechanisms.

Producing captions that fit the visual action is a sophisticated process involving skilled personnel and special equipment.

It is far more complex than flashing a tornado warning across the bottom of the screen.

Some programs are not suited to captions at all, and caption is expensive, about $2,500 an hour, and public television's historic budget crunch has grown much worse lately.

Despite these difficult problems, great strides have been made.

Due to a combination of available approaches, deaf viewers throughout the country today have access to the sound part of many hours of television each week on both commercial and public stations.

Now, this case comes to the Court on a record that covers KCET's 1974 to 1977 license term.

This was long before closed captioning was in being.

Nevertheless, KCET had presented nearly 1,000 programs with special visual aids during that license term.

The Respondents requested the FCC to deny KCET's license renewal.

They claimed that KCET's programs for the deaf were not enough, and had not been presented in peak viewing hours.

Respondents focused on the comparatively new Section 504 of the Rehabilitation Act of 1973, that prohibits discrimination against handicapped persons by recipients of federal financial assistance.

Respondents requested the FCC to use its license renewal processes to force KCET to provide more of the special services they believe that Section 504 required.

Three points made by the FCC in denying Respondents' complaint merit emphasis here.

First, the FCC found that KCET had offered special broadcasts for the deaf, and had not abused its discretion in scheduling them.

The only specific claims of KCET shortcomings were thus found baseless.

Second, the FCC reviewed the many steps it had taken under the general public interest standard of the Communications Act concerning television for the deaf, and some of these predated enactment of Section 504.

Third, the FCC concluded that it lacked Section 504 enforcement duties, because it did not dispense public funds.

The FCC deferred to the funding agencies to decide complaints of Section 504 violations, but the FCC made very clear that any finding of a Section 504 violation by KCET would be given weight.

Meanwhile, the Respondents went elsewhere.

They filed a complaint against KCET at what is now the Department of Education, one of the funding agencies.

They also brought a class action against KCET in District Court.

Both complaints charged Section 504 discrimination, and both were eventually resolved in KCET's favor.

The Respondents then appealed the FCC's denial of their complaint.

A panel of the D.C. Circuit, speaking through Judge Wright, with Judge McGowan dissenting, reversed the FCC.

Its decision ignored the extensive record evidence of KCET's service to the deaf, as well as the FCC's conclusions about it.

We ask this Court to reverse the D.C. Circuit.

The sole basis for the D.C. Circuit's decision was its belief that Section 504 expressed such a strong national policy in favor of the deaf that the FCC had to read the public interest standard in the Communications Act as if it incorporated the policy of Section 504.

The FCC thus was ordered independently to decide KCET's Section 504 compliance as part of the license renewal proceedings at the FCC.

The narrow issue this Court agreed to review is whether that novel incorporation theory is a legally correct interpretation of the intent of Congress.

We say it is not.

The mandatory incorporation theory is at war with this Court's holding that the FCC has very broad discretion to decide the scope of the public interest standard.

We have found no holding by this Court suggesting that the FCC must automatically read into the public interest standard policies expressed by the Congress in other statutes.

The FCC is not required to incorporate the policy of another law unless the Congress directs it.

Of course, the FCC may and often does consider the policies of other statutes when it determines the scope of the public interest standard in the Communications Act, but that is an initial judgment that the Congress entrusted to the FCC.

The FCC exhibited leadership concerning television for the deaf.

The Court of Appeals acted as if the FCC had done nothing.

Unidentified Justice: Mr. Czarra, do you have any idea whether the FCC at the license renewal stage would take into consideration the fact, if there were a fact, that a licensee had been found to be guilty of an unfair labor practice?

Mr. Czarra: Yes, it would.

The FCC takes into account findings by other agencies or courts of violations of law by its licensees.

Unidentified Justice: What would it do if it found that a licensee had committed an unfair labor practice?

Mr. Czarra: It would depend on the circumstances.

I don't recall immediately a case about an unfair labor practice, but they would look to see to what extent that judicial or other agency finding indicated a character trait on the part of the licensee that suggested it undeserving to be licensed.

Unidentified Justice: What if an intervenor in a license renewal proceeding, if that is what you call them, someone objecting to the license renewal, said, I think this station has been guilty of an unfair labor practice.

It is true, the NLRB has never passed on it.

Would the FCC undertake to determine that for itself?

Mr. Czarra: Well, I think the FCC initially would look at the nature of the allegations, how well they were supported by specific facts, affidavits, and so on, but I suspect that the most that the FCC would do in that situation is simply wait to see what one of the enforcement agencies would do.

Unidentified Justice: Do you think if... assume the unfair labor practice had been adjudicated by the NLRB, or that it hadn't, but the intervenor called the FCC's attention to an adjudicated unfair labor and an alleged unadjudicated one.

Could the FCC say, sorry, that is irrelevant?

Mr. Czarra: I don't think that they would say that it was irrelevant.

Unidentified Justice: I didn't ask that.

Could they say it legally?

Must they... must they take into account this failure of a licensee to live up to the requirements of another law?

Must they take that into account?

Mr. Czarra: No, I think it depends on the nature of the law.

Unidentified Justice: What about this case, then?

Didn't the FCC say that the licensee's conduct under Section 504 is irrelevant?

Mr. Czarra: No, they did not.

They said that they were going to wait until--

Unidentified Justice: Irrelevant to the license renewal proceedings.

Mr. Czarra: --No, they said it was relevant, and that they would take into account any adjudication by a responsible agency that there had been discrimination or violation of Section 504.

Unidentified Justice: But until some other agency acted on it, it was irrelevant?

Mr. Czarra: Well, I am stumbling over the word "irrelevant".

Unidentified Justice: Well, anyway, they would not take evidence as to what the station's conduct was with respect to 504--

Mr. Czarra: Well, they had--

Unidentified Justice: --as long as there had been no adjudication by some other agency.

Mr. Czarra: --But they had evidence before it of what the station was doing in terms of service to the deaf, and it decided that apart from a specific finding by a funding agency that there was some problem under 504, that the Commission under its view of the public interest standard found no shortcoming.

It noted specifically in its opinion that the station had been providing programs for the deaf.

It noted specifically that there was a controversy over the scheduling of those programs, but consistent with its historic views on scheduling questions, said, no problem, as far as the public interest standard is concerned.

For eight or nine years before the Commission acted on the Respondent's complaints here, and beginning well before enactment of Section 504, the FCC had been focusing on the question of television for the deaf.

It did not advocate its responsibilities in proceeding as it did, for it balanced the conflicting interests of the deaf and the hearing audiences.

It studied the evolving technology.

Unidentified Justice: Mr. Czarra, did the FCC take any new action after the adoption of Section 504, or was its policy already fixed?

Did it reconsider it and determine that what it had already done met the requirements of 504 to the extent that it was relevant?

Mr. Czarra: As far as the published opinions go, Justice O'Connor, there is no indication that they specifically took into account a statute called Section 504.

Unidentified Justice: It never mentioned it by number or name?

Mr. Czarra: Not as far as I recall, but after its enactment it did on several occasions before it resolved this case deal with the subject of television service for the deaf.

It was authorizing experiments on this new captioning technology.

After those had progressed, it actually authorized regular operations with the new technology, and it was continuing to observe the problem, study the question, and it continued, though, to pronounce its decision that it did not feel that under all of the circumstances things were far enough along to warrant a mandatory obligation by television stations to do any particular thing for the deaf, though it encouraged them to do what they could.

Unidentified Justice: If we were to determine that the Act, Section 504, is relevant to the purposes and things which the FCC has to decide in some way, I take it it is your position that the FCC has taken action and has applied the principles embodied in 504.

Mr. Czarra: Precisely.

I think that the FCC was out in front of the Congress and in front of the national policy in terms of television for the deaf, for it started to deal with this question in 1970, three years before there was such a thing as the Rehabilitation Act.

Unidentified Justice: Did the holding of the Court of Appeals impose any special burdens on the agency other than to require it to make tracks, so to speak, indicating its consideration of the section?

Mr. Czarra: Well, I think the Court of Appeals' opinion is somewhat ambiguous.

On the one hand, there is language that says, now, we are leaving this up to you, FCC.

You fill in the interstices of this requirement.

But by the same token, there was language in the opinion that says, we expect you to do something about this now.

We expect stations to do this, and in the light of the record where KCET had shown that it had done extensive things, one can only wonder if the Court of Appeals wasn't saying that we are requiring you, FCC, to order these stations to take some kinds of affirmative action that they have not taken up until now.

Unidentified Justice: What if evidence is offered that out of the 300 employees, there are only 3 percent that include minorities, Hispanics, orientals, Negroes, et cetera?

Is that relevant to the issue before the Commission on the renewal of the license?

Mr. Czarra: Yes, it would be.

The FCC looks into all sorts of things, but employment of women and minorities is one of the things they look at.

Unidentified Justice: Why wouldn't the Commission then have a hearing on the allegations that a station hadn't lived up to its obligations under 504?

Mr. Czarra: Well, the FCC had said in 1970 and again in 1976 that we are not going to impose any specific obligations because this whole question of television service for the deaf is wrapped up in technology and economics and other practical problems.

Therefore, we are not going to mandate some specific actions.

So that pleadings saying that a station had only done X amount of programming for the deaf would not run afoul of any stated policy, any standard, any guideline that the FCC had laid down.

Unidentified Justice: But allegedly had run afoul of 504.

Mr. Czarra: Well, that is correct, but--

Unidentified Justice: Just like the Commission listens to allegations that the station hasn't lived up to some of its obligations under some other statutes.

Mr. Czarra: --Well, the Commission evaluates the factual allegations and the record of the station, and it decides whether in its view of the public interest, whether it takes into account fully the provision of some other statute or only partially.

Unidentified Justice: Well, did the Commission in this case, or did it not, rule that the Section 504 provided no basis for the non-renewal of the license?

Mr. Czarra: It did not so state that.

It said that it was not the enforcement agency for 504, and that until an enforcement agency had ruled KCET to have discriminated, there was nothing for it to evaluate, bearing in mind again that it was satisfied that the station had done for the deaf all the things that the FCC had been saying that the deaf were entitled to have.

I will reserve the rest of my time for rebuttal.

Chief Justice Burger: Mr. Alito?

ORAL ARGUMENT OF SAMUEL A. ALITO, JR., ESQ., ON BEHALF OF PETITIONER IN NO. 81-799

Mr. Alito: Mr. Chief Justice, and may it please the Court, the narrow issue presented by this case is which agency or agencies have the responsibility for construing and enforcing Section 504 of the Rehabilitation Act.

Must the FCC do so in licensing proceedings, as the Court of Appeals held, or is the responsibility for interpreting and enforcing Section 504 exclusively that of the funding agencies, as we believe Congress determined?

Unidentified Justice: You think it must be one or the other?

Mr. Alito: No, it could be both, Your Honor.

Our position is that Congress intended for Section 504 to be enforced by the funding agencies exclusively, and not by agencies like the FCC, that do not provide--

Unidentified Justice: So it couldn't be both under the statute?

Mr. Alito: --That's correct.

We believe that Congress's intent was that it be enforced--

Unidentified Justice: So the FCC would have no authority by rule to say that because of 504 the stations must do so and so?

Mr. Alito: --I believe the FCC certainly has the authority under its own public interest standard to impose captioning requirements, and it has said so.

Unidentified Justice: Yes, but when it says particularly because of 504, the requirements of 504, we are incorporating into our public interest standard, it would have authority to do that?

Mr. Alito: I believe that the enactment of 504 or any other statute is something that the Commission could take into consideration in making its public interest determination, but I don't believe the Commission can take upon itself the responsibility for enforcing statutes if that responsibility was committed to other agencies by Congress, and I think--

Unidentified Justice: Then you don't agree with your colleague, who suggested that the employment policies of the licensee are relevant factors in the license renewal.

Mr. Alito: --Oh, I agree that that is a relevant factor, Your Honor.

The Commission--

Unidentified Justice: How does it affect the listeners?

Mr. Alito: --Pardon me?

Unidentified Justice: How does the employment practice of technicians, stenographers, salesmen, et cetera, have any bearing on what goes out over the air?

Mr. Alito: The Commission has taken the position that a station that refuses to employ persons regardless of race, sex, national origin, or religion, cannot provide service to all members of the community, as is required by the Communications Act.

It is--

Unidentified Justice: Well, then I am confused by your other response that these... I thought you were indicating that the enforcement of these other statutory duties entrusted to other agencies was left to them, and not to be taken on by the FCC.

Mr. Alito: --I think it's necessary to draw a sharp distinction between the enforcement of other statutes or the policies they express merely because those policies happen to be expressed in the statute and a factor that the Commission determines to be relevant under the public interest standard.

Unidentified Justice: What could be a greater enforcement mechanism than the threat of losing a television license?

Mr. Alito: It certainly is severe.

Unidentified Justice: That is far more serious than an order of the National Labor Relations Board or the EEOC, is it not?

Mr. Alito: It certainly is a severe sanction.

The question is whether it is the sanction Congress intended in this instance, and our position is, Congress intended for Section 504 to be enforced by the funding agencies.

The very structure of Section 504 points clearly in that direction.

504 is not applicable to all private entities or all that could be reached under the commerce clause.

It applies only to recipients of federal financial assistance.

Congress merely attached certain conditions to the receipt of federal aid, and if one of those conditions is violated, then the most obvious and basic remedies are to cut off the funding or to enjoin the recipient from continued violation of the terms of the grant.

Now, the FCC and other licensing agencies, unlike the funding agencies and unlike the courts, lack the power to do either of those things.

So, as I said, the structure of Section 504 makes it ill suited for enforcement by agencies like the Federal Communications Commission.

Beyond that, we believe that the legislative history of Section 504 clearly illustrates that Congress intended for that provision to be enforced by the funding agencies.

There is nothing in Section 504 itself and nothing in the legislative history of that provision to indicate that Congress contemplated enforcement by agencies like the FCC.

And in our view, that is highly significant, for when Congress establishes a comprehensive administrative procedure for the enforcement of the statute, and commits that responsibility to a particular agency or agencies, and it says nothing about enforcement by other agencies, then we believe it may be fairly inferred that Congress intended... did not intend for those agencies to have the enforcement responsibility.

Unidentified Justice: Do you make the same argument on equal employment opportunity, for example, that the FCC should not concern itself whatever with that in license renewals?

Mr. Alito: Not at all, Your Honor.

The FCC has determined that employment discrimination is very relevant to the license... licensing decision, and thus--

Unidentified Justice: Don't you think the FCC has determined that service to the hearing impaired is relevant to its license renewal application?

Mr. Alito: --It certainly has, and it has said so.

Unidentified Justice: Was that an erroneous decision?

Mr. Alito: Absolutely not.

Employment discrimination is different from captioning, for a number of reasons.

First of all, probably the most important reason is that captioning, unlike refraining from discriminating on the basis of race or any other invidious classification, captioning is a problem of considerable technical complexity.

The technology is in flux.

There are competing technologies at this time, and it is the Commission's judgment in the exercise of its discretion in bringing its expertise to bear on this problem that at the present time under its public interest standard technological progress may best be stimulated by refraining from imposing compulsory constraints, but the Commission has made it clear that it will continue to monitor developments in this area, and will not hesitate to impose mandatory requirements if sufficient progress is not demonstrated by the broadcasters, if the remaining technical and financial questions are not resolved, and perhaps after Section 504's meaning is clarified by the funding agencies.

Let me address a bit more directly this question of employment discrimination, because it is central to Respondent's argument and also to the reasoning of the Court of Appeals.

I think it is important to recognize that the Commission's treatment of employment discrimination and its treatment of the problem of captioning and making television understandable for the deaf is parallel in many respects.

The Commission does not enforce Title VII of the Civil Rights Act of 1964, which deals with employment discrimination.

The Commission does not enforce Section 504 of the Rehabilitation Act.

The Commission has stated that under its public interest standard, it will take into account employment discrimination by licensees.

Similarly, under its public interest standard, the Commission has long sought technically and financially feasible means of making television accessible to hearing impaired viewers, but it has reached the judgment that imposing mandatory captioning requirements at the present time under the public interest standard is not wise.

The second point to remember is that the FCC voluntarily and in the exercise of its discretion decided to take on the responsibility for looking at employment discrimination by licensees.

It was not compelled to do that by any court.

And therefore, what the Commission has done voluntarily in that area is hardly precedent for what the Court of Appeals did in this case.

And the third point which I--

Unidentified Justice: Your thought there is that the Commission may take into consideration some policies from other statutes as a part of the public interest standard on its own initiative, although had it declined to do so, the Court of Appeals couldn't compel it to do so.

Mr. Alito: --The Commission's decision to consider or not to consider a factor would be tested against an abuse of discretion standard.

Unidentified Justice: Well, do you think that in the particular case that we are talking about, it is the Commission's position that it couldn't have been required to consider employment discrimination if it had chosen not to, if that had been appealed to the Court of Appeals the way the 504 situation was here?

Mr. Alito: The Commission might well have been held by a court to have abused its discretion if it had decided that no evidence of employment discrimination, no matter how invidious, was relevant to the public interest standard, and the same sort of test is the proper one here.

Did the Commission abuse its broad discretion when it decided to treat the question of captioning as it did?

The Commission has thoroughly considered this problem, and has developed a comprehensive approach to the problem, and its approach has three basic parts.

It requires the transmission of emergency announcements in visual form.

It has decided that at the present time under the public interest standard other mandatory requirements should not be imposed.

It has stated that it will not adjudicate violations of Section 504 itself, but will take into account as evidence of a licensee's character any violations found by one of the appropriate funding agencies.

The test that the Court of Appeals ought to have applied is, was this approach an abuse of discretion, and if the court had applied that test, we feel confident it would have been required to sustain the Commission's approach.

Unidentified Justice: Your argument, counsel, seems to go beyond that of the station itself.

The station says the FCC recognized the relevance of the policies behind 504, and it has made an appropriate response at the present time, and you are saying that there was no obligation at all on the part of FCC to even recognize those policies.

That seems to me perhaps not necessary to go that far in this case.

Would you agree with that?

Mr. Alito: Your Honor, I hope that that is not the argument that I have left the impression I am advancing.

My argument is that the Commission was not required to define and enforce Section 504.

The Commission may have been required under the public interest standard to consider the problem of service to the deaf.

The Commission has considered that problem beginning before the enactment of the Rehabilitation Act, and it has not abused its discretion in the manner in which it considered the problem.

Unidentified Justice: Well, it did here just reject the submission without hearing.

Mr. Alito: It rejected the submission here without a hearing.

Unidentified Justice: And it wasn't going to take any evidence about the station's performance with respect... under 504.

Mr. Alito: That's correct, Your Honor.

It said that it would take into account any violations subsequently found by the appropriate funding agencies.

Unidentified Justice: But apparently it did think that the station wasn't out of line in terms of what the Commission's own judgment had been in the past about what stations ought to do.

Mr. Alito: The Commission has taken the position that mandatory requirements should not be imposed, largely for the technical reasons that I have touched on, and therefore there was no reason to conduct a hearing to determine whether the number of captioned hours broadcast by KCET was sufficient to meet any standard previously imposed.

Unidentified Justice: So the Commission's policy was, the station should not be made to do anything with respect to 504.

Mr. Alito: That is correct, Your Honor, in a sense.

Chief Justice Burger: We will resume there at 1:00 o'clock, counsel.

You may continue, Mr. Alito.

ORAL ARGUMENT OF SAMUEL A. ALITO, JR., ESQ., ON BEHALF OF PETITIONER IN NO. 81-799 -- RESUMED

Mr. Alito: Mr. Chief Justice, and may it please the Court, in FCC versus National Citizens Commission for Broadcasting, this Court stated,

"While the Commission does not have the power to enforce the antitrust laws as such, it is permitted to take antitrust policies into account in making licensing decisions pursuant to the public interest standard. "

Paraphrasing that statement and applying it to this case, while the Commission does not have the power to enforce Section 504 as such, it is permitted to take the problem of adapting television to the deaf into account in making licensing decisions pursuant--

Unidentified Justice: Must it?

Must it?

Mr. Alito: --That would be tested against the public interest, against an abuse of discretion standard.

Unidentified Justice: Well, how about the case you just cited?

Did it have to take antitrust considerations into account?

Mr. Alito: The Court didn't find that it had to.

Unidentified Justice: What is your submission on that?

Must it, or not?

Mr. Alito: It varies, I think, Your Honor, depending from case to case.

I don't believe it's possible to make a blanket statement.

Unidentified Justice: What about... Let's just take the antitrust case then, if you want to do it case by case.

Must it take antitrust considerations into account?

Mr. Alito: In certain contexts, I think it may be required to do so, but not--

Unidentified Justice: Sometimes it must?

In the context of the antitrust laws?

Mr. Alito: --In certain--

Unidentified Justice: Sometimes it must?

Mr. Alito: --In certain contexts, anticompetitive behavior by a licensee might be relevant to the licensing decision.

Unidentified Justice: So it must in certain cases.

Mr. Alito: Under an abuse of discretion standard, it might be found to be required to do so.

Unidentified Justice: So in our case, it must take into consideration in the proper case, as you say, the conduct of the licensee in the light of 504.

Mr. Alito: I don't mean... by proper case, I don't mean the case of one licensee as opposed to another licensee.

I mean with respect to a particular problem and a particular policy.

Here, the point is that the Commission has adopted a considered policy with respect to this problem of technological flux and technological complexity.

Unidentified Justice: Mr. Alito, may I ask you a question about the particular problem that this case raises?

As I understand it, this is a license renewal proceeding, and Mrs. Gottfried objected to the renewal of the license, and filed an objection to the renewal which was later supported by some kind of an affidavit.

Is that right?

And what I want to know is, where is the affidavit in the papers?

What is it that she has filed on which she did not get a hearing?

I can't find it in the papers.

Mr. Alito: Her claim was, she had two basic claims.

Unidentified Justice: My specific question first is, where can I find it in the papers?

Do you know?

Her claim, or her submission.

Her submission that--

Mr. Alito: It is in the record of the case.

It is not in the joint appendix.

Unidentified Justice: --It is not in the appendix at all?

Mr. Alito: No, it's not.

Unidentified Justice: Oh.

Then, what was her claim?

Mr. Alito: I believe she had two principal claims.

The first was a general allegation that the programming of this licensee and the other Los Angeles television stations involved was insufficient with respect to the deaf.

The second was that the--

Unidentified Justice: Insufficient according to what standard?

Mr. Alito: --Under the... Under Section 504 of the Rehabilitation Act.

Her second claim was that KCET had abused its discretion by its decision concerning the scheduling of the ABC captioned news, and as to that question, the Commission inquired into the matter and found that KCET had not abused its programming discretion.

Unidentified Justice: So she did get a hearing on the second charge she made?

Mr. Alito: She certainly got an inquiry by the Commission into that charge.

She did not get an inquiry into the general allegation of insufficient programming for the deaf, because the Commission does not have at this time mandatory requirements concerning captioning.

What is basically wrong with the Court of Appeals decision in this case is that it requires the Commission to pave the way in construing what Section 504 requires.

It requires something more than simply a recitation of the language of Section 504, because 504's requirements in the area of captioning are as yet not fully defined.

For example, it may be argued under this Court's decision in Southeastern Community College versus Davis that Section 504 requires no captioning because Section 504 does not demand expensive affirmative efforts to overcome handicaps, the disabilities imposed by handicap.

On the other hand, it may be argued again based on Davis that captioning is required because there are instances in which the refusal to accommodate the needs of the handicapped through captioning or some other available technology might amount to discrimination.

Until such basic questions concerning Section 504's applicability to the problem of captioning are resolved, and in our view they should be resolved by the funding agencies, it will be impossible for the Commission to determine in a licensing proceeding whether a licensee had complied with Section 504--

Unidentified Justice: May I ask another question?

Because I have a lot of difficulty with abstract problems, as this seems to be.

Did she in her paper allege specific facts that she said constituted a violation of a statute?

Mr. Alito: --She alleged facts which she claimed constituted a violation.

Unidentified Justice: Essentially, what facts did she allege?

Basically, what did she say?

Mr. Alito: The specific allegation concerned when KCET began to broadcast the ABC captioned news, and the hour at which it was programmed.

The general allegations concerned the number of programs broadcast during the license term that were accessible to hearing impaired viewers.

Unidentified Justice: And so, could it be said that by denying a hearing, that the FCC said... ruled, in effect, that those allegations, even if true, do not constitute a violation of that statute, or is it better to say they don't care whether it constitutes a violation of the statute?

Which is their view?

Mr. Alito: Your Honor, I don't believe it's either.

They did not find that those did not constitute a violation of 504.

They certainly did not say that whether or not KCET had violated 504 was irrelevant.

It was relevant to the character, to KCET's character and therefore its fitness for a license, but the Commission stated that it would wait until a violation of that statute was found by one of the funding agencies.

Unidentified Justice: That's like saying they don't care unless some other agency finds there to be a violation.

Mr. Alito: I wouldn't say they don't care, Your Honor.

It is simply a recognition that one administrative agency, even though required to implement the public interest, cannot be expected to do the work of all the other administrative agencies.

Unidentified Justice: So it is a... I asked you earlier in this argument, didn't they say, it is irrelevant until and unless some other agency decides there has been a violation?

Because they had no hearing.

Mr. Alito: It is true in that sense.

Whether or not they complied with 504.

But not the general question of adapting television to the deaf.

Unidentified Justice: Yes, because they felt that they were at least in line with Commission policy.

Mr. Alito: They felt they were in line with the Commission policy of not imposing mandatory requirements at this time.

Unidentified Justice: Insofar as 504 is concerned, isn't it a fairly orthodox application of primary jurisdiction on behalf of one agency for another?

Mr. Alito: I believe it is, Your Honor.

It is what the Commission does in cases of allegations of individual employment discrimination and other cases concerning the violation of statutes committed by Congress to other agencies.

Thank you.

Unidentified Justice: Frequently in our opinions and questions we refer to the alleged expertise, the accumulated experience of these regulatory agencies.

Isn't that a factor to be taken into account, whether, as Justice Rehnquist suggested, this is a primary responsibility of the FCC, to delve into a subject where another agency has total control?

Mr. Alito: I believe the FCC's expertise is very relevant in this sense.

The Commission has brought its expertise to bear upon the problem of captioning, and has developed an approach, and if the Court of Appeals had applied the correct test, it would have sustained the FCC's exercise of its expert judgment in this case.

The decision of the Court of Appeals can hardly be sustained in the name of the Commission's expertise, when that is precisely what it upset.

There is something a little bit strange, I admit, on its face, about the FCC, the expert in the area of broadcasting, deferring to a funding agency, but this is where Congress allocated that responsibility, and what Section 504 is about, at least in part, is how an agency's funds are spent, and the FCC is not... does not claim particular expertise as to how the funds of the Department of Education or another funding agency should be spent.

Thank you.

Chief Justice Burger: Mr. Firestone.

ORAL ARGUMENT OF CHARLES M. FIRESTONE, ESQ., ON BEHALF OF THE RESPONDENTS IN BOTH CASES

Mr. Firestone: Mr. Chief Justice, and may it please the Court, I represent Sue Gottfried and the Greater Los Angeles Council on Deafness, who in turn represent the estimated five and a half to eighteen million severely hearing impaired people who have been subject to a history of discrimination generally and largely excluded from participation in and denied the benefits of our nation's pervasive and influential television system.

We are supported in this case, of course, by deaf groups around the country who really seek to be included in the television system, where--

Unidentified Justice: The word... when you use the word "discrimination", what do you mean?

Mr. Firestone: --Certainly that is a term of art with respect to--

Unidentified Justice: Well, I am just wondering... it must be in your mind, so how is it defined in your mind?

Mr. Firestone: --I think in the case of 504, I think discrimination means failure to... indifference, exclusion, and failure to remove barriers that are at least reasonably accommodable.

Unidentified Justice: You don't suggest it means purposeful discrimination because somebody can't hear?

Mr. Firestone: Well, I think that is part of the definition of discrimination as well, and certainly that--

Unidentified Justice: Somebody is discriminating against them because they can't hear?

Mr. Firestone: --No.

Unidentified Justice: Is that what you are saying?

Mr. Firestone: It is hard to believe that that would be the case.

Unidentified Justice: That isn't what you really mean, is it?

Mr. Firestone: No, although that--

Unidentified Justice: You mean they are discriminating in the sense they don't have the same opportunity.

Mr. Firestone: --Yes, they are denied equal access, more or less, and denied--

Unidentified Justice: They are not provided equal access.

Mr. Firestone: --Not provided by reasonable accommodations.

Now, it is possible that, as the Commission has held, that the policy of exclusion can be inferred from... excuse me, a policy of discrimination can be inferred from a policy of exclusion of minorities, or a policy of indifference.

The Commission has held that in a couple of cases, so that it is very possible that as a legal matter there would be discrimination, although somebody does not have the animus, which is hard to believe, that somebody would actually discriminate against the disabled.

Unidentified Justice: Well, if this Court or any court, for example, which is open to the public does not provide amplifying equipment so that people who are hard of hearing either can't follow the proceedings or have great difficulty, is that a discrimination?

Mr. Firestone: Well, certainly you are not under any obligation, legal obligation, as is in this case, but I think that... and I would also preface by saying that the Court has been accommodating to--

Unidentified Justice: Must it?

Must it?

That is the question.

Mr. Firestone: --Not under the law.

Not under the law.

I don't think the Court would be covered by--

Unidentified Justice: Then--

Mr. Firestone: --You mean, if the Court--

Unidentified Justice: --Do I understand your answer that it is not discriminatory not to provide caption, immediate translation of everything that is going on here for the benefit of the audience?

Mr. Firestone: --Actually, I am... I don't know if the Court is considered... you mean, under Section 504, or just generally discrimination?

Unidentified Justice: No, generally.

The term discrimination isn't limited to this statute.

It is a broad term.

Mr. Firestone: I think what is required is reasonable accommodation under the standard of Davis and other cases that have looked at what is discrimination against the disabled.

Reasonable accommodation might mean allowing signing, as the Court has done.

It may mean... or the case of a lawyer who wants to argue, to allow for simultaneous captioning.

I think the Court's record in this area is exemplary, but not to allow... not to have amplification equipment that may or may not help other people I don't think is required.

Unidentified Justice: Well, are we subject to 504?

Mr. Firestone: I don't think so.

Unidentified Justice: Why aren't we?

Mr. Firestone: I don't think you are defined as a federal agency, are you?

0 [Generallaughter.]

Officially.

Unidentified Justice: Well, we are funded.

I suppose we are funded.

Mr. Firestone: Federally funded, but I don't think--

Unidentified Justice: No one can cancel our license.

We are not funded by grants under the program, are we?

Mr. Firestone: --Right.

0 [Generallaughter.]

Unidentified Justice: And our license can't be cancelled by anyone.

Mr. Firestone: Right.

We are accountable to you, not the other way around, as the licensees are accountable to the FCC and to the public.

Unidentified Justice: My hypothetical questions were put to you in your use of the word "discrimination".

Mr. Firestone: Yes.

Unidentified Justice: Which is not limited to 504 or any other statute.

It is a very broad term.

Mr. Firestone: Right, and I think that I was somewhat careful not to only use the word "discrimination", but also use the other words of the statute, which say not to exclude from the benefits or deny participation.

In other words, the statute, I think, still given the Davis case, which says that it really is talking about intentional discrimination, but it also goes on to say that discrimination, there is a fine line between discrimination and failure to afford affirmative action, illegal discrimination versus affirmative action.

I think that 504 was definitely intended to allow for access by the disabled to America's institutions.

It was really a step forward.

Is was the Magna Carta of civil rights for the disabled, and in this case, I think that Congress also intended that this Magna Carta be taken into account not simply by an occasional funding agency or at the whim of the funding agency, but by all the government.

The issue in this case is whether or not one government... the one government institution which is charged with the overall regulation of television may ignore or find irrelevant Congressional policy designed to aid the handicapped when it considers a license renewal application of an applicant who is subject to this requirement, and it is clear in this case that KCET is subject to the--

Unidentified Justice: Suppose the Commission said, well, we are going to adopt a rule that we think 504 is a relevant matter for the public interest, and here is our rule, here is what stations must do.

Mr. Firestone: --Yes.

Unidentified Justice: And then a station comes up for license renewal, and the Commission rules that the station is in perfect conformity with its rule, and denies a hearing on allegations that the station has not lived up to 504.

Mr. Firestone: Well, in that case, then the rule was adopted pursuant to 504.

Presumably that could be reviewed as to whether or not it is arbitrary or capricious.

Unidentified Justice: The action or the rule?

Mr. Firestone: It has a rule.

I'm sorry.

Unidentified Justice: Yes, well, the rule could be subject to--

Mr. Firestone: Yes, or presumably at the license renewal time, and that--

Unidentified Justice: --You think the rule could be attacked at license renewal time?

Mr. Firestone: --I think that if the rule were an illegal rule, were found to be contrary to the law, I think that it could be attacked.

It would be certainly an unusual situation.

I can't think offhand of one--

Unidentified Justice: Well, the Commission... I gather the Commission's argument is that it has done internally all that it thinks necessary under 504.

Mr. Firestone: --Well, the Commission--

Unidentified Justice: And that it doesn't need to listen to anything else.

Mr. Firestone: --No, the Commission has one grave omission, and that omission is 504.

When it adopted these policies, when it looked, you know, at this application, it did not take into account the fact that Congress intended that those who are disabled have access to the communications system.

We are talking here about the communications handicapped, the people who really don't have the opportunity to partake in this system, and here is an opportunity not only to include them, but certainly to look at how the recipients of federal financial assistance, those who are under a specific law, to apply this standard of inclusion, of non-discrimination, however we want to describe the dictates of 504.

It had an opportunity to bring them into the communications system, and instead what it did was say, we will not look at this.

This is irrelevant.

This is... A licensee can do nothing and still comply.

In fact, it could discriminate, presumably.

Let's say that a licensee intentionally... I can't understand why, but let's say that a licensee would intentionally refuse to carry, let's say, close captioned.

In fact, there is a licensee that when they get the closed captions, they remove the closed captions, as I understand it, before they send it out.

Now, I am not saying this is a public broadcasting station, but let's say that the licensee actually takes that affirmative step.

The Commission would say, this is irrelevant.

It doesn't matter what you do or what you don't do, in terms of providing some service for the hearing impaired.

Unidentified Justice: Let me ask you, suppose the funding agency had considered a complaint that this particular funded station hadn't lived up to its obligations under 504, and had decided that... had rejected the complaint, and said the station was living up to its obligations under 504, doing all that was reasonably necessary, and then the station came up for license renewal.

Could you relitigate that whole question or not?

Mr. Firestone: I think so, certainly, because--

Unidentified Justice: You have to say that, I gather, don't you?

Mr. Firestone: --Well, I wouldn't have to say that, because in this case there was no reasonable expectation that another agency would act.

In other words, I don't have to say it in this case.

Unidentified Justice: Why?

Why?

Mr. Firestone: Because the Commission was told, and it admitted that HEW, who they were deferring to, had no intention to act until Congress passed a law to decide which agency was the appropriate agency.

There was no reasonable expectation that there would be action in this case, and--

Unidentified Justice: Well, if Congress hasn't yet passed a law deciding which agency should be responsible, isn't that an indication of some go slow attitude on Congress's part--

Mr. Firestone: --No.

Unidentified Justice: --until that law is passed?

Mr. Firestone: No.

Your Honor, quite the contrary.

Certainly in 1974 the only statutory history we have on Section 503, which... actually it was a year later when they amended the law, the Congress made very clear in the Senate report that they expected action by the end of 1974.

They--

Unidentified Justice: By whom?

Mr. Firestone: --Well, they were mainly looking for guidelines from the HEW, but they also specified that there was no specific enforcement mechanism in the statute.

The Commission is arguing that there was... I think what they have to be arguing is that the legislative history intended that they not consider, because at the time of the passage of Section 504, the FCC did consider allegations of discrimination, allegations of employment discrimination as well as programming discrimination, whether or not there is an EEOC in existence, and Congress just intended to adopt a civil rights law for the disabled as it has for the minorities and women, and for them to say that the FCC is intended not to enforce this, or... excuse me.

We are not even talking about enforcement here.

What we are talking about is consideration.

All the court held in this case was not that the FCC has to be the primary enforcer or actually enforce the law.

They are saying, take this into consideration when you look at the public interest merits of a license.

Unidentified Justice: But the Court of Appeals did hold that the agency was not entitled as a matter of its discretion to defer to the other agency which had primary responsibility for enforcing 504.

Isn't that correct?

Mr. Firestone: Well--

Unidentified Justice: Is it correct, or not?

Mr. Firestone: --In this case, and they did say the special circumstances of this case, they said that deference... that they couldn't defer.

In fact, I would point out--

Unidentified Justice: Was your answer yes or no?

Mr. Firestone: --Yes.

But I... the special circumstances of this case are not only what the Court has pointed out, but in this case the Commission did not condition the license, so in other words, let's say that a further decision had been made by the Department of Education now that did relate to the license period, and by the way, they are not even considering factors that relate to the license period, which is the period in question under FCC law.

Unidentified Justice: Mr. Firestone, that makes me... I hate to interrupt you, and maybe I shouldn't, but I really want to be sure I understand the relief that you think your client is entitled to.

You were objecting to the renewal of the license, which I take it means that had you won, the license renewal would have been denied.

Mr. Firestone: Your Honor, in this case, had we won, it would simply be considered as a... we would go through a hearing.

Unidentified Justice: Is that the relief that you requested, a denial of the license?

Mr. Firestone: That's the extreme relief that is possible.

In fact--

Unidentified Justice: Well, is that what you requested?

Mr. Firestone: --I think that as a matter of law we put in, you petition to deny.

That's the standard procedure.

Unidentified Justice: Well, if that isn't what you really wanted, what did you want?

Mr. Firestone: We want access of programming for the deaf.

We want recognition.

Unidentified Justice: Do you want something specific with respect to this particular station, or do you want a general rule to apply to all stations?

Mr. Firestone: Your Honor, we would like to see... I'm stepping back from this case for a second.

We would like to see a rule of broad applicability.

Unidentified Justice: Well, we have to decide a lawsuit, you know.

Mr. Firestone: The Commission can choose whether it proceeds by rulemaking or adjudication.

Unidentified Justice: Well, Judge McGowan said they ought to proceed by rulemaking, and therefore you should lose in this proceeding.

Mr. Firestone: Well, it would have been tremendous if the Commission had proceeded by rulemaking, but they specifically declined to adopt a rule.

Now, when we come before them in an adjudication, they say, there is no rule, therefore we won't consider it.

I mean, it's a Catch 22 that the deaf are faced with.

Unidentified Justice: But what is it... I still don't... I have... it is a very strange case for me, because the pleadings are not before us, and that is what we are arguing about, the sufficiency of your pleadings.

I don't know exactly what you want.

I know you would like the Commission to do something.

Mr. Firestone: Yes.

Unidentified Justice: But is an objection to a license renewal an appropriate way to get the Commission to adopt a rule?

Isn't that what you really want, is a rule?

Mr. Firestone: Well, the Commission... what we want is a guideline.

Now, it can come... if the Commission--

Unidentified Justice: Well, should they deny this applicant's license in order to give you a guideline?

Mr. Firestone: --No, I think the court recognized that the licensee would not lose its license, that in fact there are plenty of other sanctions that are available to the Commission in this area.

They can apply prospective reporting requirements.

They can give a conditional license.

They can admonish a licensee.

They can even inquire.

They did none of these.

Unidentified Justice: Did they treat this licensee any differently than any other licensee, according to your allegations?

Do you allege this station operates differently than any other public station does?

Mr. Firestone: Well, we certainly allege that their refusal to carry the ABC captioned news, for example, or their refusal to put on the captioned version of... was indicative of an attitude of indifference, at the least.

Unidentified Justice: But is it unique to this station?

Mr. Firestone: Well, there were 118 stations around the country that were carrying the ABC captioned news when the Los Angeles station, where there may be the second most number of people who are deaf in the country, was not carrying this.

I mean, there was a certain indifference going on here.

And it led to the situation where the deaf were picketing the station, and finally they put it on at 11:30 at night and repeated it at 6:30 the next morning, and... sometimes.

Sometimes they didn't put it on at 11:30.

And that was considered under--

Unidentified Justice: Mr. Firestone, I take it your position is, and arguably it is correct, that the Commission ruled that considerations of 504 are irrelevant to the license renewal proceeding.

Is that right?

Mr. Firestone: --No, we--

Unidentified Justice: I mean, the Commission.

The Commission's action was--

Mr. Firestone: --Yes, the Commission's... that's right.

Unidentified Justice: --that it is irrelevant, it is just beside the point, in which event they would say also if you asked them to make a rule that that is irrelevant, too, because it just... until somebody else does something, it is none of our business.

Mr. Firestone: It seems to me that that is their attitude.

There was a request for action.

They constantly say, we will not adopt a rule, and then the only way to come before them... this is the appropriate... at this point, this is the appropriate means of trying to seek a guideline as to what--

Unidentified Justice: If they won't make a rule, you want it by adjudication at an appropriate time.

Mr. Firestone: --That's right.

And also there are other advantages of adjudication.

Looking at a case specifically, just as Your Honor would prefer to have the specifics of a case before you than the abstract, is very helpful to an agency, and of course we are dealing here with the agency with the expertise over broadcasting.

I would point out, for example, in the Commission's brief they issue certain... they mention certain requirements that would be necessary for a 504 application to television.

Two of those, at Page 32, are, it must not place unreasonable restrictions upon the journalistic and artistic freedom of television broadcasters and producers.

It must not impose such high costs on public television stations that they are driven out of business or forced to curtail other important services.

Now, how does the agency that is charged with the responsibility of licensing these television stations, and remember that our system is that we deny the right to broadcast to everyone but the few licensees who get these licenses, and once they have those licenses, they are public trustees accountable now every five years to the government, and to the people, and how they are going to avoid looking at this question when these requirements are only within their expertise... I mean, they are suggesting that you go to the Department of HEW, which is now the Department of Education.

The licensee in this case was funded by the Department of Education for certain programming, by the Department of Commerce.

They get equipment.

Unidentified Justice: Do you think the Commission in any manner short of rulemaking has ever communicated to any station what its preferments are with respect to the handicapped?

Are you a communications lawyer?

Mr. Firestone: Yes.

Unidentified Justice: Well, are you aware that the Commission has ever taken any position with respect to communicating with the people who can't hear very well?

Mr. Firestone: The only thing that they did was, in 1970... I will go through it.

In 1970, they said it would be very good to have television accessible to the deaf.

We are suggesting certain items, but we will adopt no rule, and by the way, this was on a request for ruling.

Unidentified Justice: They suggested it, didn't they?

Mr. Firestone: They suggested some things.

Unidentified Justice: And people knowledgeable in the business knew what the suggestions are.

Mr. Firestone: If they read the deaf captioning decision at 26 FCC 2nd 916 or whatever.

Unidentified Justice: Well, lawyers for stations usually do, don't they?

Mr. Firestone: I would hope so.

Unidentified Justice: Yes.

Well, was this station in compliance with the suggestions of the Commission, or not?

Mr. Firestone: Well, the Commission has never... won't look at that question.

Unidentified Justice: I am asking you, not the Commission.

Mr. Firestone: I think that they aren't in compliance with the suggestions.

The suggestions were such things as getting together with other licensees and--

Unidentified Justice: So this station has followed the lead of the Commission, is doing everything the Commission thought needed to be done.

Mr. Firestone: --No, it said that they had not.

They had not--

Unidentified Justice: This station has not done everything the Commission thought should be done?

Mr. Firestone: --They have not done everything that the Commission suggested in the 1970 statement.

Unidentified Justice: Oh, they haven't?

Mr. Firestone: They have not.

No.

They... Not only that, the Commission has not looked at it.

They refuse to look at that question.

They said, we adopted no rule, then they... but they did say, this is up to each individual licensee to show... to determine how to serve their local communities.

We have come in and said that they are not serving their local community.

It could be a case now where the Commission's position is that somebody has affirmatively refused to carry captioned programming, to send out the encoded signal, taken an affirmative step.

Unidentified Justice: I understood that the Commission had stated that it did encourage experimentation with technology by stations about this problem, and that it actually issued a warning that it would consider imposition of mandatory requirements if it determined in the future that the voluntary efforts were not satisfactory.

Is that right?

Mr. Firestone: They did when they adopted the Line 21 captioning, said that... at that time, they said it is still up to each individual licensee.

It is each individual licensee's responsibility to serve the local community, the local deaf community.

They indicated that that would be something--

Unidentified Justice: Well, is what the Court of Appeals did here really to quarrel with the FCC's determination of public interest?

Mr. Firestone: --No, Your Honor.

Unidentified Justice: What is in the public interest?

Mr. Firestone: The Court of Appeals was extremely careful and extremely narrow in this decision to say in the special circumstances of this case the FCC must... cannot ignore the dictates of 504.

When they look at these questions, they just should consider the fact that Congress intended that the deaf have some access, that they not be ignored, and that certainly was the thrust of the Court of Appeals' decision.

Unidentified Justice: Has the FCC also required that all emergency messages be visually transmitted?

Mr. Firestone: Yes.

But of course--

Unidentified Justice: And it said that if the agency charged with primary enforcement of 504 determines there is a violation, it will take that into account?

Mr. Firestone: --Well, I don't think they could have taken it into account in this decision without actually proceeding with revocation action, because they did not condition the outcome of this proceeding on the outcome of any other proceedings in the government.

Unidentified Justice: Mr. Firestone--

--What--

--Go ahead.

My only question was, I thought we might clarify, if you would give me your idea of what the FCC has to do to comply with the opinion of the court below.

Mr. Firestone: Your Honor, I think that they have to inquire into the good faith of the licensee as to how they were--

Unidentified Justice: How would they do that?

Mr. Firestone: --I think that the... I suppose that if... first of all--

Unidentified Justice: Can we get beyond supposing?

Mr. Firestone: --Well, there are... the Commission has a variety of options that the court left open to them.

The court very much recognized this Court's requirement that the court allow... defer to the Commissions' discretion, so they left open the procedures to the Commission.

Now, one possibility would be that the Commission would designate for hearing, in which case I would expect that the licensee would come forward with a motion for summary judgment, bringing forth affidavits of various Commission... I mean, various station officials to discuss what they had done and--

Unidentified Justice: All you want is a hearing?

Mr. Firestone: --That's right.

That is all--

Unidentified Justice: That is all you want?

So far.

0 [Generallaughter.]

Mr. Firestone: --Well, the Commission must be reasonable.

Let's take the situation of--

Unidentified Justice: What do you want beyond a hearing?

Mr. Firestone: --Beyond the hearing, we would like guidelines.

I think that what the Commission would have to do--

Unidentified Justice: You would get the guidelines on a hearing involving one station?

Mr. Firestone: --Well, the Commission has done this on numerous occasions.

Unidentified Justice: You want rulemaking or not?

Mr. Firestone: The Commission could defer... This is another possibility.

The Commission could institute a rulemaking.

Unidentified Justice: Well, what do you want?

Mr. Firestone: I would like to see a rulemaking, but--

Unidentified Justice: You've got a ruling.

You want an adjudication first as to whether this license can be renewed.

That is what you asked for.

Mr. Firestone, do you think--

--Where did you ask for a license to be renewed?

Mr. Firestone: --Pardon?

Unidentified Justice: Where did you ask for relief?

Mr. Firestone: In the petition before the Commission.

Unidentified Justice: None of that is here.

Mr. Firestone: It is not, Your Honor.

Unidentified Justice: It is in the record.

Mr. Firestone: It is in the joint appendix of the D.C. Circuit.

We were asked to keep down the record.

Unidentified Justice: Isn't it in the record that has been lodged here, somewhere?

Mr. Firestone: Yes.

Unidentified Justice: It is not in the printed--

Mr. Firestone: It is not in the joint appendix.

Unidentified Justice: --It is in the record lodged here, isn't it?

Mr. Firestone: It's in the record.

The record would include, I assume, the joint appendix of the D.C. Circuit, and we were asked to keep the record down.

The Commission did not... well, I don't want to go into the Joint appendix problems, but I apologize for not having--

Unidentified Justice: Mr. Firestone, do you think it is crystal clear that this television station and the programming it presents is

"a program or activity receiving federal financial assistance. "

under the terms of 504--

Mr. Firestone: --Yes, Your Honor.

Unidentified Justice: --and that it would have no defense to an action, say, if the appropriate agency brought it in court?

Mr. Firestone: Yes, Your Honor, and in fact this has been held by everyone who has looked at.

Unidentified Justice: What do you mean, held by everyone?

Mr. Firestone: Well, the District Court--

Unidentified Justice: Are some of them judges?

Mr. Firestone: --Yes, the District Court in Los Angeles held that they were subject to 504.

The Department of Health, Education, and Welfare held that they were subject to 504.

And I would like to point out that this licensee is... receives assistance not only from the Department of Education, the Department of Commerce, the National Endowment for the Arts, the National Endowment for the Humanities, the U.S. Information Administration, but also the Corporation for Public Broadcasting and the Public Broadcasting Service, and particularly the Corporation for Public Broadcasting is... they float through federal funds to the licensee, but they do not... they are not a federal agency.

They don't have the enforcement power.

Unidentified Justice: Didn't the station make some defense in the Court of Appeals that it was not subject to this provision, that it had a statutory exemption from program control or something to that effect?

Mr. Firestone: Well, the Court of Appeals disposed of it in a footnote.

Yes.

Unidentified Justice: Well, if we get back to your contention that all these things ought to be originally thrashed out before the FCC, does that really make much sense, if it is deciding a fairly complicated question of... wouldn't you want the agency charged with the statutory mandate whose administrative interpretation would be entitled to considerable weight to make those kind of determinations in the first place?

Mr. Firestone: Well, I don't see how the fact that the licensee got $5 million in federal money in 1977, and how they have gotten something like 30 percent of their money from federal subsidies can be a difficult question as to whether or not they are subject to 504.

Unidentified Justice: Could you have just gone into a district court somewhere and sought to enjoin or to get an injunction against the station for violations of 504?

Mr. Firestone: Yes, there was an action.

There was such an action.

Unidentified Justice: Well, there was such an action.

Did you win?

Mr. Firestone: No, the... well--

Unidentified Justice: What was the result of the action?

Mr. Firestone: --The result was that the court found that they couldn't... that there was no standard by any of these funding agencies.

Unidentified Justice: Didn't they say you should go to the funding agency, or not?

Mr. Firestone: It was the... actually, the licensee in that decision, and that is, I think, at Page 149 of the joint appendix that you have, argued that there was primary jurisdiction in the FCC.

That is where they told... that is what they were telling the court.

Unidentified Justice: Did you lose, or what happened?

Mr. Firestone: It is on appeal in the Ninth Circuit.

Unidentified Justice: Well, you lost in the district court on the grounds that that was the wrong place to go?

Mr. Firestone: No, no.

The district court found that the... they dismissed the licensee because there was no standards for the licensee to comply with, and they then issued an order for the--

Unidentified Justice: No standards issued by the funding agency.

Mr. Firestone: --By the funding agencies, and they included the Federal Communications Commission.

Unidentified Justice: Now, this Court has said countless times, and other courts have, that these regulatory agencies have broad, very broad discretion as to what they will weigh and take into account.

Now, if an agency has exercised that discretion and come up with what someone regards as a wrong decision, isn't the review of that decision limited to an abuse of discretion, not a matter of a Court of Appeals deciding that it should have been done some other way?

Mr. Firestone: Yes, Your Honor, and that's exactly what happened in this case.

Unidentified Justice: And you suggest there is an abuse of discretion here on the part of the agency?

Mr. Firestone: Yes.

Yes, there was an abuse of discretion by failing to consider a relevant factor, making the consideration of a law that is clearly relevant to communications, to the Communications Act... we are talking about inclusion of a segment... a minority segment of the audience, something that really goes to the underlying purposes of the Communications Act.

In fact, if you--

Unidentified Justice: An abuse of discretion on the Commission's part because it decided to defer to an agency which has a life or death control over a public television station, life or death control by virtue of the grants.

Mr. Firestone: --Well, the agencies that they deferred to do not have life and death control.

The life or death control is the Commission's, and in fact--

Unidentified Justice: Don't you think the grants have a lot to do... perhaps life and death isn't quite it, but they can shut off the supply of blood, can't they?

Mr. Firestone: --They can, and that would be an extreme remedy which we frankly would not like to see, but the... because we would like to see public... we don't want to hurt public broadcasting.

We are trying to get more service, not less.

In other words, the remedy... we were faced there with a remedy that is an unsatisfactory remedy to everyone.

Unidentified Justice: But the grant agency doesn't always just inflict a death blow right away.

They inform the grantee or the prospective grantee that if they don't do certain things, then their grant will be cut off.

Mr. Firestone: Okay.

Unidentified Justice: Isn't that the real control over this problem?

Mr. Firestone: No, Your Honor, it isn't, quite honestly.

Unidentified Justice: Well, 504, though, isn't a commerce power regulation.

It's spending power, isn't it?

Mr. Firestone: Yes, but it is still aimed at--

Unidentified Justice: And it only affects people who get federal money.

Mr. Firestone: --That's right, which is this licensee.

Unidentified Justice: It is not a general regulation that people who communicate over the airways that are granted, that are licensed through a public authority are subject to this regulation.

It is just people who get money.

Mr. Firestone: That's right.

Unidentified Justice: What kind of an agency, or what kind of a licensee do we have here?

Do we have one who got money?

Mr. Firestone: Yes.

Unidentified Justice: Well, then--

Mr. Firestone: A licensee who received money from the federal government.

Unidentified Justice: --Yes.

Mr. Firestone: However, some of the--

Unidentified Justice: And if they don't play ball according to the views of that agency, they aren't going to get any more money.

Isn't that the prospect?

Mr. Firestone: --Perhaps that would be the extreme repercussion.

Unidentified Justice: Isn't that the statutory scheme?

Mr. Firestone: Your Honor, and I would really like to go to the statutory scheme, which contemplates not only that these factors would be enforced at the individual funding agencies, and by the way, they get most of their funds from the Corporation for Public Broadcasting, which cannot in fact enforce this statute.

They also get a lot of their equipment from the Department of Commerce through facilities grants, and how do you enforce that after you have given them the facilities?

I mean, there are some real problems with the enforcement aspect here.

But in the end, it is really the FCC that must look at the overall operation of the station.

The fact that this licensee is subject to this law is simply... I mean, is very importantly a factor to be taken into account when they look at whether or not a licensee is law abiding, and look at the character of the licensee, look at the operation of the station, look at the intent of Congress.

Congress, at the time that they passed the Rehabilitation Act, the FCC was considering allegations of discrimination.

They were considering equal employment allegations.

They were considering programming allegations.

Even though these could have been affected by going to an agency.

Let me give an example.

Let's say that in Jackson, Mississippi, there is a licensee who always excluded blacks from the screen, and they got money from the federal government through... let's say they are a public licensee and they got their equipment, say, from the government.

Unidentified Justice: Wasn't that issue settled in United Church of Christ against WLBT?

Mr. Firestone: That's right, and the Commission had an obligation to--

Unidentified Justice: That was a clear case of discrimination on the basis of race, was it not?

Mr. Firestone: --But the Commission is saying that if there is another agency... that's exactly what this case is about.

If there is another agency who can enforce this law, because the law would be Title VI, that would be a violation of Title VI, if there is another agency that can enforce that, we won't look at it.

In that case, the Commission... the analogy would be here, we are not going to look at it until another agency decides whether or not there is a violation.

Unidentified Justice: But in the United Church of Christ case, it was 50 or 60 percent of the audience that was being discriminated against.

What percentage of the audience total is involved here?

Mr. Firestone: Your Honor, the percentage is in single figures, I think.

The hearing impaired may be 5 percent.

The severely hearing impaired may be 5 percent.

Somewhere between... around 5 to 7 percent or so.

But that I don't think is the proper criterion in this case to consider.

The fact is that Congress intended to protect this class of people.

It intended that licensees who receive federal money open up, lower their barriers to the provision of the programming for these people, and the FCC would be the... really the appropriate place to exert their expertise.

I mean, this... we are talking about an educational, informational, vital part of this country which is, for better or worse, television, and it is considered maybe the second most influential institution in the United States, and we are now in 1982, and there are... the Commission has still not looked at this question as to whether or not a licensee is complying or even serving the purposes of the Communications Act... I mean, of the Rehabilitation Act.

I think that Congress intended in the legislative history of Section 504 that this would be a broad policy, and I would like to bring the Court to the cases where the Court has said that the FCC cannot ignore a relevant statute.

Let me give you an example of one that the Commission cites in its EEO rules, where the National Labor Relations Board wanted to reinstate some employees on a ship who had struck and in fact the court found that this was a violation of the mutiny, that the actual strike happened to be a violation of the mutiny laws, and they said, you cannot apply the National Labor Relations Act without considering other relevant statutes to this matter.

There is no question that Congress intended this law to be a broad policy to include the deaf, include the disabled, and what the Commission is saying, and I think quite clearly, today, is, this is not something that we must take into account when we have... make our independent public interest standard, and there are plenty of cases, including the United Church of Christ case, which say that the Commission must look at the facts of that case.

Remeber, in that case they tried to defer the question of the discrimination.

It is a very similar situation.

Let's say that the Commission in that case said, well, this is something for another agency to decide, we won't decide it, and they waited and waited, and another agency didn't come forward.

Or the NPC case, which proposes or suggests... this is the U.S. Supreme Court case... that because the licensee might be in violation of the antitrust laws, which of course the Justice Department primarily enforces, does not mean that the Commission must not take the policies of the antitrust laws into account in the Communications Act.

They have tried to distinguish the antitrust laws by saying, well, this is so clearly related to the Communications Act.

There is no question that the provision of service to minority groups is vitally important to the--

Unidentified Justice: In that case, the Commission should take into consideration the antitrust laws on its own motion?

It wasn't forced to by a Court of Appeals.

Mr. Firestone: --They weren't, but there are other cases where Courts of Appeals have required, and the Supreme Court, required that they take into account the... such as the Southern Steamship case that I was referring to a minute ago.

Unidentified Justice: That was the National Labor Relations Board, wasn't it?

Mr. Firestone: Yes, but the principle is the same.

The principle is that where there is a... and the NAACP case is another example.

Now, there, the NAACP adopted a rule, but the point is that where there is a clearly relevant statute, that what is happening here is that Congress... that the FCC is ignoring Congressional policy.

Unidentified Justice: So you say that the FCC must take into account any clearly defined federal policy expressed in a statute?

Every one.

And that the FCC is not free to say in administering the public interest standard that we are going to exclude from our considerations of the public interest standard Statute A, B, and C, but include them in D, E, and F.

You say that is just wrong?

Mr. Firestone: It is wrong if the statute that they are excluding relates to the underlying values of the Communications Act.

Unidentified Justice: Well, may they exclude any statute that has some relevance to the--

Mr. Firestone: May they exclude any statute that has relevance?

Unidentified Justice: --from consideration of the public interest?

They say, we are in charge of administering the public interest standard, here is a statute we think is too tangential to be considered.

Mr. Firestone: They... I would first preface this by saying that that is... this case... that is broader than what this case holds, and it is broader than the NAACP versus Federal Power Commission.

Unidentified Justice: Yes, but surely the Court of Appeals imposed ingredients of the public interest that the Communcations Commission rejected.

They are saying, you must consider part of the public interest, A, B, and C, even though you don't want to.

Mr. Firestone: Because the Commission abused its discretion by failing to consider this relevant factor which they agree is relevant.

The Commission itself said, well, we will take this into account at a later time, perhaps, although they didn't condition... they didn't do the formal action that they needed to do in order to take that into account, but where there is a relevant statute, certainly they must consider... this is... says the same where the court says, okay, when we look over... the reviewing standard is arbitrary, capricious, abuse of standard, or abiding by law, and part of that discussion and search, scrutiny by the court is whether or not they considered all relevant factors.

Unidentified Justice: Well, suppose the Commission had undertaken a rulemaking proceeding about this subject, and the submissions were so confusing and the technology in such a state of flux that they declined to issue any rule, that it just wasn't timely to issue a rule right now, and then the next day this submission is made, that the license should be denied because of failure to live up to 504.

Can't the Commission say, awfully sorry, but it just isn't... now is just not the time to do that?

Mr. Firestone: Well, I think what they would have to do is at least look at the allegations.

Unidentified Justice: Well, they did look at the allegations, and they said, we don't want to have another hearing, we just decided that it isn't time to have a decision.

Mr. Firestone: No, what they did was, they looked at those allegations in consideration of another factor.

In other words, they looked at-it without taking into account what the Congressional policy was with respect to the deaf.

They said, okay, we are not going to look at the programming scheduling, but they didn't look at the programming scheduling and the decision of the licensee not to carry this programming, for example, with the idea in mind of Congress intending that the deaf... that the recipients of federal financial assistance make reasonable accommodations to serve the disabled.

That was plain and simple what happened here, was ignoring of federal policy and a clearly relevant statute to the public interest standard, and the Commission's failure to judge management of discrimination.

Chief Justice Burger: Your time has expired now, counsel.

Mr. Firestone: Thank you, Your Honor.

Chief Justice Burger: Mr. Czarra.

ORAL ARGUMENT OF EDGAR F. CZARRA, JR., ESQ., ON BEHALF OF PETITIONER IN NO. 81-298 -- REBUTTAL

Mr. Czarra: Justice Stevens, the Respondents here asked the FCC to deny KCET's license because it was not broadcasting with open captions all of its programs.

That was their complaint.

That was the relief that they sought.

Now, as far as what--

Unidentified Justice: Does the record tell us whether any station uses captioning in all its programs?

Mr. Czarra: --The record, I think, does not show that, Your Honor, but the point is, Justice White, that KCET did everything that the FCC had said in its policy statements it was going to require.

Unidentified Justice: Your colleague denied that.

Mr. Czarra: He is incorrect.

Unidentified Justice: Is that in the record?

Mr. Czarra: It is in the record.

Unidentified Justice: That it complied with everything the FCC had suggested stations ought to do?

Mr. Czarra: The only thing the FCC said it was going to require stations to do--

Unidentified Justice: Well, suggest, suggest.

Mr. Czarra: --Well, all right.

First we will take require.

Was emergency messages.

There is not an allegation anywhere that KCET failed to do that.

Unidentified Justice: How about suggest?

Mr. Czarra: The suggestions were that the faces of newscasters be present on the screen, that scores of games be given visually.

KCET didn't broadcast any games.

Unidentified Justice: You mean, not even scores?

Mr. Czarra: I think not.

They are supposed to be educational.

0 [Generallaughter.]

Unidentified Justice: They would violate their license if they broadcast one, I suppose.

Mr. Czarra: No, the question, I guess, is, would they violate their license if they didn't broadcast one.

Unidentified Justice: If they didn't, okay.

Mr. Czarra: After a day and a half of trial in federal district court in California, the judge dismissed the complaint against KCET, the complaint of discrimination, on the ground that there had been no proof of discrimination.

We didn't even have to put on our defense.

And... Thank you.

Unidentified Justice: Well, you can certainly finish your--

Chief Justice Burger: Finish your sentence.

Unidentified Justice: --Finish your answer to my question.

Mr. Czarra: Well, I was going to another point.

I had finished that one.

Unidentified Justice: Well, not quite.

0 [Generallaughter.]

Mr. Czarra: Wonderful.

Unidentified Justice: Did the court find, or has anybody found, or is it just your assertion, that the station had lived up to every suggestion that the FCC had made about taking care of the handicapped?

Mr. Czarra: The only express suggestions were the ones that I enumerated, emergency bulletins, focusing on the face of people so that lipreading would be permissible, and giving scores in writing.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.